Banker by day, hooker by night can lead to employment ramifications

8 December 2015

Moonlighting as a prostitute cost a Dutch banker her job over what the bank described as issues relating to "integrity"

Readers of the international press will often come across colourful stories of human frailty where an individual leads a double life which is subsequently exposed. They may then lose their job shortly afterwards.

It only tends to be the dramatic cases that get reported; most of the New Zealand based cases involve people who did not retain their employment.

British newspaper The Independent highlighted the plight of Conchita Van der Waal, a 46 year old Dutch woman, who worked at the Central Bank of the Netherlands by day, and lived a shadowy life by night.

Van der Waal moonlighted in the sex industry.

It would seem Van der Waal had some idea of the conflict between her competing professions, commenting on her website, "Business meetings, elegant suits, lace stockings, garter belts, hold-ups, stiletto heels. If only my colleagues, clients or boss knew … that at night I enjoy my hobby of being a hooker"

British newspapers reported her services with salacious detail. Needless to say, the Dutch Central Bank dismissed her over what it described as issues going to "integrity".

Readers won't be surprised at Van der Waal's fate.

But - without disparaging the hard workers in the primary produce sector - what if she was employed in the meat works and carried out the secondary job such as she did?

Or what if she worked from home as an IT worker, whose identity was unknown to those she provided the ultimate work for? Could an employer justifiably take the same action?

Shouldn't people have the freedom to live as they please in their own time? What business is it of their employer?

DAMAGED

In New Zealand there must be a clear relationship between the frowned upon conduct and the employment before disciplinary action can be considered, but this can include if the reputation of the employer's business has been damaged in some way.

A New Zealand case dealing with similar issues involved Amaltal Fishing Company and Nathan Morunga.

Morunga was employed by the fishing company to serve one of their fishing vessels. He was employed on the basis of two trips on and one trip off. Each trip would typically be of 6 weeks duration. A short 72 hour social period occurred between trips.

Morunga and three colleagues booked themselves into a hotel and spent their first night drinking. At 7am they presented in an unattractive state and their drunkenness on a scale of 1 to 10 was described as being at 9.

They were offensive to guests in the breakfast room and took a tour leader's bag back to their own room. One of the group put on the tour leader's clothes and her pearls. He was later convicted of stealing these.

They vomited in the room and one of them urinated in the tour leader's bag. Another urinated out of the window on the sixth floor and struck the assistant manager of the hotel.

The police were ultimately summoned and they were arrested.

While Morunga was still in custody, his manager went to the police station and slipped a note in his bag telling him he was dismissed. This is scarcely what one would traditionally think was a fair hearing (and any employer would be ill advised to take similar steps).

One of Amaltal's concerns was that Morunga and his colleagues' behaviour cast doubt over whether he could be "relied on to display the high standard of responsibility required on board [the ship]" following the incident.

But their dismissal was found by the then Chief Judge to be justified and what occurred was described as one of those rare instances where further investigation was not necessary.

LIBERAL

It is arguable that society would hold fisherman to a more liberal standard of conduct outside the workplace (and perhaps within too).

Despite this, Morunga's fate was the same as Van Der Waal's. Perhaps the stern treatment of Morunga can be attributed to the fact that the group's actions almost amounted to petty criminal behaviour and were arguably more serious than Van der Waal's (although Morunga successfully defended a charge of assault arising from the incident).

Van der Waal's action on the other hand were not criminal but simply transgressed certain moral standards.

Readers will have a view on the degree of freedom individuals should have in their own lives and the extent to which their employers should be able to take action against them because of this.

With the Christmas party season in full swing, it may be that employers take an attitude at the more liberal end of the spectrum, but there will be a line drawn where certain conduct will be seen as going too far. It would be dangerous for partying staff to forget that.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.